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Salmon Spawning & Recovery Alliance v. Bashman

ELR Citation: 37 ELR 20059
Nos. No. 06-00191, (Ct. Int'l Trade, 03/06/2007)

The court held that it lacked jurisdiction to hear environmental groups' claims against U.S. Customs, the U.S. Fish and Wildlife Service, and the National Oceanic and Atmospheric Administration-Fisheries for allowing threatened and endangered salmon to be imported from Canada into the United States in violation of the Endangered Species Act §§7 and 9. Given the discretionary nature of Customs' exercise of its enforcement powers, the court lacks subject matter jurisdiction over the groups' §9 claim. And the groups' §7 claim fails to meet the "case" or "controversy" requirement of Article III. Congress intended §7 to apply only to affirmative agency actions and not to those circumstances in which agencies do not exercise their powers. The agency behavior that the groups cite as the catalyst for triggering Customs' §7 obligations, however, is failure to enforce §9. Because nonenforcement constitutes a failure to act, rather than an affirmative action, §7 cannot provide the remedy that the groups seek.